GEORGIA LAW REVIEW - StephanKinsella.com

19791 HUMAN RIGHTS 1439
universalize a principle which, on such grounds alone, without any
attempt at obtaining consent or a fair allocation of the risk of death,
legitimated the sacrifice of possibly their basic interests, if they are
on the receiving end. The rejection as a proper basis for justification
of such utilitarian balances alone, however, is in toto caelo different
from the acceptance of some justifying balance of 'evils in such a
case where some fair procedure consensually allocates the risk of
death, to the extent feasible. In extreme cases where such procedures
are infeasible, the lack of such procedures and the exigency
of the circumstances (for example, a car careening out of control
which, turned in one direction, would kill one, and, in the other,
three) justify the lesser evil.
Holmes's critique of Kantian ideas is, accordingly, mistaken. It
is not at all obvious that Kantian ideas may not be reasonably
developed to justify a form of necessity defense. In general,
Holmes's defense of the prevention principle, like his general defense
of objective liability in the criminal and civil law, is notoriously
inadequate. It does not take seriously the previously discussed
constitutionally mandated requirements for just punishment,
which cannot be accounted for by utilitarian considerations
of deterrence and pre~ention.~~' Further, it is not at all clear, and
was not even when Holmes wrote, that "most English-speaking lawyers"
would accept prevention as the sole ground for criminal liability?
Finally, the Holmesian critique of Kantian ideas as "a theory
of absolute unselfishness" crudely confuses the idea of moral impartiality,
which Kant tried to articulate, with notions of benevolence.
In fact, utilitarianism is more closely allied with ideals of "absolute
unselfishness" than is Kantian theory, for utilitarian principles
readily allow, in a way which autonomy-based ethics does not, sacrifices
of the individual for the common good. In general, as this
article should indicate, autonomy-based ethics much more powerfully
explicates the moral foundations of the criminal law than utilitarianism.
F. Inchoate Crimes: Of Attempts
The law of attempts, like that of conspiracy, defines an inchoate
crime in the sense that one may be guilty of an attempt when the
Cf. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY (1968), at ch. I. For an excellent
critique of Holmes, see G. FLETCHER, supra note 167, at 504-14.
202 See, e.g., 2 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 80-83 (London
1883).